[Federal Register Volume 68, Number 209 (Wednesday, October 29, 2003)]
[Proposed Rules]
[Pages 61650-61654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27269]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[SIP NO. MT-001-0048; FRL-7580-1]


Approval and Promulgation of Air Quality Implementation Plans; 
Montana; Maintenance of Air Pollution Control Equipment for Existing 
Aluminum Plants

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to disapprove a State Implementation Plan 
revision submitted by the State of Montana on January 16, 2003. This 
revision provides existing aluminum plants an exemption to meeting 
emission limits during scheduled maintenance. This action is being 
taken under section 110 of the Clean Air Act.

DATES: Written comments must be received on or before November 28, 
2003.

ADDRESSES: Written comments may be submitted by mail to Richard R. 
Long, Director, Air and Radiation Program, Mailcode 8P-AR, 
Environmental Protection Agency (EPA), Region 8, 999 18th Street, Suite 
300, Denver, Colorado 80202-2466. Comments may also be submitted 
electronically, or through hand delivery/courier. Please follow the 
detailed instructions described in (Part (I)(B)(1)(i) through (iii)) of 
the Supplementary Information section.

FOR FURTHER INFORMATION CONTACT: Laurie Ostrand, Air and Radiation 
Program, Mailcode 8P-AR, Environmental Protection Agency (EPA), Region 
8, 999 18th Street, Suite 300, Denver, Colorado 80202, (303) 312-6437, 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. General Information
II. Background
III. Why EPA is Proposing to Disapprove the State of Montana's 
January 16, 2003 Submittal
IV. Proposed Action
V. Statutory and Executive Order Reviews

Definitions

    For the purpose of this document, we are giving meaning to certain 
words or initials as follows:
    (i) The words or initials Act or CAA mean or refer to the Clean Air 
Act, unless the context indicates otherwise.
    (ii) The words EPA, we, us or our mean or refer to the United 
States Environmental Protection Agency.
    (iii) The MACT standard refers to the National Emission Standards 
for Hazardous Air Pollutants for Primary Aluminum Reduction Plants.
    (iv) The initials SIP mean or refer to State Implementation Plan.
    (v) The words State or Montana mean the State of Montana, unless 
the context indicates otherwise.

I. General Information

A. How Can I Get Copies of This Document and Other Related Information?

    1. The Regional Office has established an official public 
rulemaking file available for inspection at the Regional Office. EPA 
has established an official public rulemaking file for this action 
under MT-001-0048. The official public file consists of the documents 
specifically referenced in this action, any public comments received, 
and other information related to this action. Although a part of the 
official docket, the public rulemaking file does not include 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. The official public rulemaking 
file is the collection of materials that is available for public 
viewing at the Air and Radiation Program, EPA Region 8, 999 18th 
Street, Suite 300, Denver, CO. EPA requests that if at all possible, 
you contact the contact listed in the For Further Information Contact 
section to schedule your inspection. You may view the public rulemaking 
file at the Regional Office Monday through Friday, 8 a.m. to 4 p.m., 
excluding federal Holidays.
    2. Copies of the State submittal are also available for public 
inspection during normal business hours, by appointment at the State 
Air Agency. Copies of the State documents relevant to this action are 
available for public inspection at the Montana Department of 
Environmental Quality, Air and Waste Management Bureau, 1520 E. 6th 
Avenue, Helena, Montana 59620.
    3. Electronic Access. You may access this Federal Register document 
electronically through the Regulations.gov Web site located at http://www.regulations.gov where you can find, review, and submit comments on, 
Federal rules that have been published in the Federal Register, the 
Government's legal newspaper, and are open for comment.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing at the EPA Regional Office, 
as EPA receives them and without change, unless the comment contains 
copyrighted material, CBI, or other information whose disclosure is 
restricted by statute. When EPA identifies a comment containing 
copyrighted material, EPA will provide a reference to that material in 
the version of the comment that is placed in the official public 
rulemaking file. The entire printed comment, including the copyrighted 
material, will be available at the Regional Office for public 
inspection.

B. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate rulemaking identification number by including the text 
``Public comment on proposed rulemaking MT-001-0048'' in the subject 
line on the first page of your comment. Please ensure that your 
comments are submitted within the specified comment period. Comments 
received after the close of the comment period will be marked ``late.'' 
EPA is not required to consider these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD-ROM you submit, and in any cover letter accompanying 
the disk or CD-ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket. If EPA cannot 
read your comment due to technical difficulties and cannot contact you 
for clarification, EPA may not be able to consider your comment.

[[Page 61651]]

    i. E-mail. Comments may be sent by electronic mail (e-mail). Please 
send any comments simultaneously to [email protected] and 
[email protected] and include the text ``Public comment on 
proposed rulemaking MT-001-0048'' in the subject line. EPA's e-mail 
system is not an ``anonymous access'' system. If you send an e-mail 
comment directly without going through ``Regulations.gov'' (see below), 
EPA's e-mail system will automatically capture your e-mail address. E-
mail addresses that are automatically captured by EPA's e-mail system 
are included as part of the comment that is placed in the official 
public docket.
    ii. Regulations.gov. Your use of Regulations.gov is an alternative 
method of submitting electronic comments to EPA. Go directly to 
Regulations.gov at http://www.regulations.gov, then click on the button 
``TO SEARCH FOR REGULATIONS CLICK HERE'' and select Environmental 
Protection Agency as the Agency name to search on. The list of current 
EPA actions available for comment will be listed. Please follow the 
online instructions for submitting comments. The system is an 
``anonymous access'' system, which means EPA will not know your 
identity, e-mail address, or other contact information unless you 
provide it in the body of your comment.
    iii. Disk or CD-ROM. You may submit comments on a disk or CD-ROM 
that you mail to the mailing address identified in section 2, directly 
below. These electronic submissions will be accepted in WordPerfect, 
Word or ASCII file format. Avoid the use of special characters and any 
form of encryption.
    2. By Mail. Send your comments to: Richard R. Long, Director, Air 
and Radiation Program, Mailcode 8P-AR, Environmental Protection Agency 
(EPA), Region 8, 999 18th Street, Suite 300, Denver, Colorado 80202-
2466. Please include the text ``Public comment on proposed rulemaking 
MT-001-0048'' in the subject line on the first page of your comment.
    3. By Hand Delivery or Courier. Deliver your comments to: Richard 
R. Long, Director, Air and Radiation Program, Mailcode 8P-AR, 
Environmental Protection Agency (EPA), Region 8, 999 18th Street, Suite 
300, Denver, Colorado 80202-2466. Such deliveries are only accepted 
Monday through Friday, 8 a.m. to 4:55 p.m., excluding federal Holidays.

C. How Should I Submit CBI to the Agency?

    Do not submit information that you consider to be CBI 
electronically to EPA. You may claim information that you submit to EPA 
as CBI by marking any part or all of that information as CBI (if you 
submit CBI on disk or CD-ROM, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is CBI). Information so marked will not be 
disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    In addition to one complete version of the comment that includes 
any information claimed as CBI, a copy of the comment that does not 
contain the information claimed as CBI must be submitted for inclusion 
in the official public regional rulemaking file. If you submit the copy 
that does not contain CBI on disk or CD-ROM, mark the outside of the 
disk or CD-ROM clearly that it does not contain CBI. Information not 
marked as CBI will be included in the public file and available for 
public inspection without prior notice. If you have any questions about 
CBI or the procedures for claiming CBI, please consult the person 
identified in the For Further Information Contact section.

D. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate 
regional file/rulemaking identification number in the subject line on 
the first page of your response. It would also be helpful if you 
provided the name, date, and Federal Register citation related to your 
comments.

II. Background

    On January 16, 2003, the State of Montana submitted a new rule for 
incorporation into the SIP. The rule is titled Administrative Rules of 
Montana (ARM) 17.8.335, Maintenance of Air Pollution Control Equipment 
for Existing Aluminum Plants. On April 1, 2003, we sent a letter to the 
State indicating that the submittal was complete pursuant to the 
requirements in 40 CFR part 51, appendix V.
    The rule was adopted as part of the SIP. The rule covers 
maintenance of air pollution control equipment for existing aluminum 
plants. There is currently one source that is subject to this rule, the 
Columbia Falls Aluminum Company (CFAC) in Columbia Falls, Montana. CFAC 
operates a primary aluminum reduction plant. The plant is equipped with 
air pollution control equipment, including ducts conveying exhaust to 
dry scrubbers. The State and CFAC have indicated they believe that air 
pollution control equipment requires periodic maintenance to keep it in 
good operating order. The State and CFAC have also indicated that the 
failure to maintain the air pollution control equipment eventually 
results in the failure of the equipment. Finally, the State and CFAC 
have indicated that the failure of the equipment would result in air 
pollution emissions from the plant that exceed those allowed and may 
create an unacceptable risk to public heath.
    Further, the State and CFAC contend that the maintenance of the air 
pollution control equipment requires the plant to shut down the dry 
scrubbers and to bypass some of the dry scrubbers during the 
maintenance event. If the plant continues to operate during the 
shutdown of the dry scrubbers, the air pollution emissions from the 
plant may exceed those allowed by rules governing emission of air 
pollutants.
    In the past the plant has applied to the State for a variance from 
rules governing emission of air pollutants so that the plant could 
conduct maintenance on the air pollution control equipment while 
continuing to operate the plant. CFAC contends that the process for 
obtaining a variance is time consuming. The State has adopted a rule 
that allows the plant to maintain air pollution control equipment while 
the plant is operating, without requiring the plant to obtain a 
variance.
    Our review of ARM 17.8.335, Maintenance of Air Pollution Control 
Equipment for Existing Aluminum Plants, indicates that it is not 
approvable and we are proposing to disapprove Montana's SIP revision 
submitted on January 16, 2003 for the reasons indicated below.

[[Page 61652]]

III. Why EPA Is Proposing To Disapprove the State of Montana's January 
16, 2003 Submittal

ARM 17.8.335 Is Not Consistent With the Clean Air Act (CAA) and EPA 
Policy

    First, ARM 17.8.335 provides an exemption to meeting emission 
limits for a specified source category during scheduled maintenance. 
Generally, since SIPs must provide for attainment and maintenance of 
the national ambient air quality standards (NAAQS) and the achievement 
of the prevention of significant deterioration of air quality (PSD) 
increments, all periods of excess emissions must be considered 
violations.\1\ Accordingly, any provision that allows for an automatic 
exemption for excess emissions is prohibited. The appropriate mechanism 
for excusing excess emissions in this situation is through the exercise 
of enforcement discretion. We understand that the source conducted 
modeling to demonstrate that excess emissions during the maintenance 
procedures would not cause or contribute to violations of the Montana 
Ambient Air Quality Standards (MAAQS) or NAAQS. Our concerns with the 
modeling are discussed below.
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    \1\ See EPA's September 20, 1999 memorandum from Steven A. 
Herman and Robert Perciasepe to Regional Administrators entitled 
``State Implementation Plans: Policy Regarding Excess Emissions 
During Malfunctions, Startup, and Shutdown.''
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    The State contends that the new rule only indicates that the 
Department may not initiate an enforcement action for excess emissions 
during maintenance of air pollution control equipment that results in a 
violation of emission standards and that the rule does not contain an 
exemption from enforcement for maintenance activities that violate a 
federal or state ambient air quality standard or PSD increments.
    We do not agree with the State. The 1970 Act established the air 
quality management process as a basic philosophy for air pollution 
control in this country. Under this system, we establish air quality 
goals (NAAQS) for common pollutants. States develop control programs 
(termed SIPs) and also issue permits under the PSD or nonattainment new 
source review programs, to assure that the NAAQS are attained and 
maintained. The NAAQS themselves are not an emission standard or 
limitation. Coalition Against Columbus Center v. New York, 967 F.2d 
764, 769 (2d Cir. 1992). States establish enforceable emission limits 
in SIPs or permits at sources to assure that the NAAQS are met.
    Second, in guidance documents issued by EPA and other final 
rulemakings, we have indicated that scheduled maintenance is a 
predictable event which can be scheduled at the discretion of the 
operator, and which can therefore be made to coincide with maintenance 
on production equipment, or other source shutdowns. Consequently, 
excess emissions during periods of scheduled maintenance should be 
treated as a violation unless a source can demonstrate that such 
emissions could not have been avoided through better scheduling for 
maintenance or through better operation and maintenance practices.\2\
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    \2\ See EPA's September 28, 1982 policy memorandum from Kathleen 
M. Bennett to Regional Administrators, entitled ``Policy on Excess 
Emissions During Startup, Shutdown, Maintenance, and Malfunction,'' 
page 3 of the Attachment. See also, 65 FR 51412, 51426 (August 23, 
2000).
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    The State contends that the aluminum process is unique in that the 
process does not include periodic shutdowns; the startup and shutdown 
process is expensive and lengthy; maintenance of the control equipment 
requires the plant to bypass some of the dry scrubbers. We are not 
convinced that the CFAC aluminum process is so unique, or that 
redundant control technology could not be added, to address scheduled 
maintenance. We are not aware of other aluminum facilities that have 
asked for an exemption to emission limits for scheduled maintenance. 
Some other aluminum facilities are designed so that maintenance can be 
completed on portions of the control equipment without having to shut 
down all of the control equipment.
    We are proposing to disapprove ARM 17.8.335 because we believe it 
is inconsistent with the Act (e.g., sections 110(a)(2)(E) and 110(i)), 
prior rulemakings and our guidance.

Concerns With Impacts in the Columbia Falls PM-10 Nonattainment Area

    The impact of the ``maintenance'' emissions (i.e., the additional 
700 lbs of PM per 24-hour period expected during maintenance) on the 
Columbia Falls PM-10 nonattainment area were not analyzed. The State 
believes CFAC is in a different airshed from the nonattainment area and 
that emissions from CFAC do not have a significant impact on the 
Columbia Falls PM-10 nonattainment area. We believe that further 
analyses need to be completed before it can be determined that CFAC 
does not impact the Columbia Falls PM-10 nonattainment area. CFAC is 
only about one mile from the City of Columbia Falls. The State has not 
demonstrated that this plan revision will not interfere with the 
attainment plan for the Columbia Falls PM-10 nonattainment area. 
Because of the potential impact in the Columbia Falls nonattainment 
area, we believe ARM 17.8.335, Maintenance of Air Pollution Control 
Equipment for Existing Aluminum Plants, may not be consistent with 
section 110(l) of the CAA. That is, EPA cannot approve a SIP revision 
if it interferes with any applicable requirement concerning attainment 
and reasonable progress or any other applicable requirement of the Act.

Concerns With the Modeling

    DEQ's testimony in the matter of the amendment of air quality rules 
pertaining to maintenance of air pollution control equipment for 
existing aluminum plants indicates that CFAC modeled its normal 
operations plus 700 lbs of PM-10 per 24-hour period.\3\ Therefore, the 
normal operating emissions were considered along with the maximum 
allowable increase (700 lbs of PM-10 per 24-hour period) from the 
proposed maintenance procedure. Additionally, only emissions from the 
CFAC facility were considered in the analysis because the State 
determined that adding background concentration of PM-10 emissions 
measured at the onsite PM-10 monitor adequately represented the 
emissions from other sources in the area. We believe this modeling 
approach is inconsistent with the modeling rules and will not assure 
protection of the NAAQS for several reasons.
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    \3\ The testimony is contained the documents submitted with the 
January 16, 2003 SIP. See Tab 10 of the submittal.
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    Allowable emissions, rather than normal operating emissions, should 
be used in modeling. This requirement is contained in EPA's Guideline 
on Air Quality Models, 40 CFR part 51, appendix W, Table 9-1. Montana 
adopted these rules by reference and we have approved them into the 
State's SIP (see ARM 17.8.802(1)(g)). Additionally, ``normal operating 
emissions'' is not defined in the State's new rule and the rule does 
not explain how ``normal operating emissions'' are calculated. Finally, 
EPA's ``Guideline on Air Quality Models'' requires that any nearby 
point sources that cause a significant concentration gradient should 
also be included in the modeling. See 40 CFR part 51, appendix W, 
section 9.2.3. Other sources in the airshed including those at CFAC 
should also be included in the modeling.
    The State only required that the source model one month (i.e., 
September) for three years. We believe

[[Page 61653]]

this is problematic because it is extremely unlikely that one would 
capture worst case conditions that may occur in future September 
periods. Three months of data is not enough to find even slightly 
adverse conditions. The State believes that since maintenance is only 
allowed in September using three years of onsite meteorological data 
for September should adequately represent the types of meteorological 
conditions that would be encountered during the maintenance procedures. 
We do not agree. EPA's Modeling Guidelines requires five years of 
National Weather Service meteorology data be used in modeling to assure 
that the most adverse meteorological conditions are considered in the 
analysis. See Guideline on Air Quality Models, 40 CFR part 51, appendix 
W, section 9.3.1. Three months of data is clearly insufficient.
    Lastly, the modeling assumed a background concentration of 17 
microg/m3. This value was taken from the monitor near the plant and not 
the monitor in Columbia Falls. We are not convinced that the 17 microg/
m3 value is an appropriate value to be used for background 
concentration. Maximum ambient concentrations measured in Columbia 
Falls over the past several years in the August to October time frame 
have been on the order 16 to 48 microg/m3.

Concerns With the Maximum Achievable Control Technology (MACT) 
Requirements

    EPA has two concerns regarding the interaction of this rule with 
the National Emission Standards for Hazardous Air Pollutants for 
Primary Aluminum Reduction Plants (the MACT standard). First, we are 
concerned that by adopting this rule, the State of Montana may impact 
its automatic delegation of the MACT standard (40 CFR subpart LL, at 
ARM 17.8.103(1)(j) and 17.8.342) because the new rule could be 
interpreted to alter the requirements of the delegated MACT standard. 
Although the MACT standard adopted by Montana is not being revised, the 
new rule has a direct impact on the requirements of the MACT standard. 
EPA's MACT standard does not have any provision for exempting excess 
emissions during a maintenance event. Any excess emissions have to be 
reported and enforcement discretion used in determining what, if any, 
penalty is appropriate for the event. The MACT standard was 
automatically delegated to the State under the condition that the 
State's rule is identical to the EPA rule (40 CFR 63.91(a)(1)). If 
changes are made, the automatic delegation could be withdrawn and the 
State would have to undergo a formal delegation process in order to 
receive delegation for this MACT standard (40 CFR 63.91(a)(2)). This 
process would include a demonstration that the changed rule is at least 
as stringent as the EPA rule. Second, we are concerned that by adopting 
ARM 17.8.335, the State has rules with conflicting requirements--one 
set in the MACT standard adoption and one set in this SIP rule, leading 
to confusion for the source and public as to which one applies. We 
intend to engage the State in discussion to clarify this matter.

IV. Proposed Action

    For the reasons identified above, EPA is proposing to disapprove 
the SIP revision submitted by the State of Montana on January 16, 2003. 
The submittal requests that ARM 17.8.335, Maintenance of Air Pollution 
Control Equipment For Existing Aluminum Plants, be added to the SIP. We 
are continuing to evaluate the impacts of the new rule on the 
delegation of the MACT standard, 40 CFR subpart LL, at ARM 
17.8.103(1)(j) and 17.8.342, to the State. We are soliciting public 
comments on the issues discussed in this document. These comments will 
be considered before taking final action. Interested parties may 
participate in the Federal rulemaking procedure by submitting written 
comments to the EPA Regional office listed in the Addresses section of 
this document.

V. Statutory and Executive Order Reviews

A. Executive Order 12866, Regulatory Planning and Review

    The Office of Management and Budget (OMB) has exempted this 
regulatory action from Executive Order 12866, entitled ``Regulatory 
Planning and Review.''

B. Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., OMB must 
approve all ``collections of information'' by EPA. The Act defines 
``collection of information'' as a requirement for ``answers to * * * 
identical reporting or recordkeeping requirements imposed on ten or 
more persons * * *'' 44 U.S.C. 3502(3)(A). Because this proposed rule 
does not impose an information collection burden, the Paperwork 
Reduction Act does not apply.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to conduct a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    This rule will not have a significant impact on a substantial 
number of small entities because EPA's proposed disapproval action only 
affects one industrial source of air pollution; Columbia Falls Aluminum 
Corporation. Only one source is impacted by this action. Furthermore, 
as explained in this action, the submission does not meet the 
requirements of the Clean Air Act and EPA cannot approve the 
submission. The proposed disapproval will not affect any existing State 
requirements applicable to the entity. Federal disapproval of a State 
submittal does not affect its State enforceability. Therefore, because 
the Federal SIP disapproval does not create any new requirements nor 
impact a substantial number of small entities, I certify that this 
action will not have a significant economic impact on a substantial 
number of small entities.
    Moreover, due to the nature of the Federal-State relationship under 
the Clean Air Act, preparation of flexibility analysis would constitute 
Federal inquiry into the economic reasonableness of state action. The 
Clean Air Act forbids EPA to base its actions concerning SIPs on such 
grounds. Union Electric Co., v. U.S. EPA, 427 U.S. 246, 255-66 (1976); 
42 U.S.C. 7410(a)(2).

D. Unfunded Mandates Reform Act

    Under sections 202 of the Unfunded Mandates Reform Act of 1995 
(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA 
must prepare a budgetary impact statement to accompany any proposed or 
final rule that includes a Federal mandate that may result in estimated 
costs to State, local, or tribal governments in the aggregate; or to 
the private sector, of $100 million or more. Under section 205, EPA 
must select the most cost-effective and least burdensome alternative 
that achieves the objectives of the rule and is consistent with 
statutory requirements. Section 203 requires EPA to establish a plan 
for informing and advising any small governments that may be 
significantly or uniquely impacted by the rule.
    EPA has determined that the approval action proposed does not 
include a Federal mandate that may result in estimated costs of $100 
million or more

[[Page 61654]]

to either State, local, or tribal governments in the aggregate, or to 
the private sector. This Federal action proposes to disapprove pre-
existing requirements under State or local law, and imposes no new 
requirements. Accordingly, no additional costs to State, local, or 
tribal governments, or to the private sector, result from this action.

E. Executive Order 13132, Federalism

    Federalism (64 FR 43255, August 10, 1999) revokes and replaces 
Executive Orders 12612 (Federalism) and 12875 (Enhancing the 
Intergovernmental Partnership). Executive Order 13132 requires EPA to 
develop an accountable process to ensure ``meaningful and timely input 
by State and local officials in the development of regulatory policies 
that have federalism implications.'' ``Policies that have federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Under Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government, as specified in Executive Order 13132, because it 
merely proposes to disapprove a state rule implementing a federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the Clean Air Act. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule.

F. Executive Order 13175, Coordination With Indian Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This proposed rule does not 
have tribal implications, as specified in Executive Order 13175. It 
will not have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes. This action does not involve or impose 
any requirements that affect Indian Tribes. Thus, Executive Order 13175 
does not apply to this rule.
    EPA specifically solicits additional comment on this proposed rule 
from tribal officials.

G. Executive Order 13045, Protection of Children From Environmental 
Health Risks and Safety Risks

    Protection of Children from Environmental Health Risks and Safety 
Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that EPA has reason to believe may have a disproportionate 
effect on children. If the regulatory action meets both criteria, the 
Agency must evaluate the environmental health or safety effects of the 
planned rule on children, and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency. This rule is not subject to 
Executive Order 13045 because it does not involve decisions intended to 
mitigate environmental health or safety risks.

H. Executive Order 13211, Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act 
(NTTAA) of 1995 requires Federal agencies to evaluate existing 
technical standards when developing a new regulation. To comply with 
NTTAA, EPA must consider and use ``voluntary consensus standards'' 
(VCS) if available and applicable when developing programs and policies 
unless doing so would be inconsistent with applicable law or otherwise 
impractical.
    The EPA believes that VCS are inapplicable to this action. Today's 
action does not require the public to perform activities conducive to 
the use of VCS.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, 
Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate 
matter, Reporting and recordkeeping requirements, Sulfur oxides, 
Volatile organic compounds.

    Authority: 42 U.S.C. 7401 et seq.

    Dated: October 17, 2003.
Robert E. Roberts,
Regional Administrator, Region 8.
[FR Doc. 03-27269 Filed 10-28-03; 8:45 am]
BILLING CODE 6560-50-P